in united states district court for the district of …...in united states district court . for the...

IN UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

ERIC CALL et al., Plaintiffs, v. WOODROW JONES III et al., Defendants.

:::::: ::::::

No. 1:20-cv-3304-DKC

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO

DISMISS THE COMPLAINT

Case 1:20-cv-03304-DKC Document 20 Filed 12/21/20 Page 1 of 41

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION ...........................................................................................................................1

STATEMENT ..................................................................................................................................2

I. Maryland’s Regulatory Scheme Bans Carry by Typical, Law-Abiding Adults .................2

II. Defendant’s Refusal to Issue Handgun Carry Permits to Plaintiffs .....................................5

ARGUMENT ..................................................................................................................................6

I. The Conduct Restricted by Maryland’s Regulatory Scheme Lies at the Core of the Second Amendment. ............................................................................................................6

A. Text, Precedent, Purpose, and History All Confirm That the Right to Keep and Bear Arms Extends Outside the Home. ............................................................6

B. Woollard Erred in Concluding That the Right to Carry Firearms Outside the Home Is Not at the Core of the Second Amendment. ............................................16

II. Under Heller, Defendants’ Requirement of a Special Need for Self-defense to Exercise Second Amendment Rights Is Categorically Unconstitutional. ..........................19

III. Woollard Was Wrong to Uphold Defendants’ “Good and Substantial Reason” Restriction Under Intermediate Scrutiny. ..........................................................................22

A. Strict Scrutiny Should Apply. ................................................................................22

B. Defendants’ “Good and Substantial Reason” Restriction Fails Even Intermediate Scrutiny, Properly Applied. ..............................................................22

CONCLUSION ..............................................................................................................................33


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TABLE OF AUTHORITIES

Cases Page Atwater v. City of Lago Vista, 532 U.S. 318 (2001) ......................................................................10 Aymette v. State, 21 Tenn. 154 (1840) .....................................................................................17, 18 Billups v. City of Charleston, 961 F.3d 673 (4th Cir. 2020) .........................................................24 Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90 (1822) .................................................................12, 18 Bruni v. City of Pittsburgh, 824 F.3d 353 (3d Cir. 2016) ........................................................24, 25 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) ...........................................................21 Caetano v. Massachusetts, 136 S. Ct. 1027 (2016) .........................................................................8 Carcaño v. McCrory, 203 F. Supp. 3d 615 (M.D.N.C. 2016) .........................................................6 City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) ................................................23 City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) ......................................................23 District of Columbia v. Heller,

554 U.S. 570 (2008) .........................................................1, 2, 6, 7, 8, 10, 12, 16, 18, 19, 20, 21 Drake v. Filko, 724 F.3d 426 (3d Cir. 2013) .................................................................................24 Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) .................................................................15 Emp. Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990) ..................................21 First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) ..........................................................21 Gamble v. United States, 139 S. Ct. 1960 (2019) ..........................................................................15 Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018) ..............................................................................8 Grace v. District of Columbia, 187 F. Supp. 3d 124 (D.D.C. 2016) .................................22, 23, 24 Heller v. District of Columbia, 801 F.3d 264 (D.C. Cir. 2015) .....................................................23 Kachalsky v. Cnty. of Westchester, 701 F.3d 81 (2d Cir. 2012) ....................................................18 Lucero v. Early, 873 F.3d 466 (4th Cir. 2017) ................................................................................6 McCullen v. Coakley, 573 U.S. 464 (2014) .............................................................................24, 25 McDonald v. City of Chicago, 561 U.S. 742 (2010)......................................................9, 16, 20, 22 Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)..................................................7, 8, 9, 19, 25, 26 N.Y. Times Co. v. United States, 403 U.S. 713 (1971) ..................................................................21 Nunn v. State, 1 Ga. 243 (1846) ...........................................................................................8, 12, 18 Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) ....................................................10 Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014) ..............................................11, 12 Rex v. Knight, 90 Eng. Rep. 330 (K.B. 1686) ................................................................................10 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ....................................................22


iii

Scherr v. Handgun Permit Rev. Bd., 880 A.2d 1137 (Md. Ct. Spec. App. 2005) .................2, 4, 20 Simpson v. State, 13 Tenn. 356 (1833) ..........................................................................................13 Sir John Knight’s Case, 87 Eng. Rep. 75 (K.B. 1686) ..................................................................12 Snowden v. Handgun Permit Review Bd. of Md. Dep’t of Pub. Safety and Corr. Servs.,

413 A.2d 295 (Md. Ct. Spec. App. 1980) ..................................................................................4 State v. Chandler, 5 La. Ann. 489 (1850) ................................................................................17, 18 State v. Huntly, 25 N.C. 418 (1843) ...............................................................................................13 State v. Reid, 1 Ala. 612 (1840) ...............................................................................................12, 18 Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ..................................................................27 United States v. Chester, 628 F.3d 673 (4th Cir. 2010) .............................................................7, 20 United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011) ............................................16, 17, 18 United States v. Virginia, 518 U.S. 515 (1996) .............................................................................25 Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) ................................................8, 32 Wikimedia Found. v. Nat’l Sec. Agency, 857 F.3d 193 (4th Cir. 2017) ...........................................6 Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) .........................................2, 8, 17, 20, 23, 27 Wrenn v. District of Columbia,

864 F.3d 650 (D.C. Cir. 2017) .............................................8, 13, 14, 16, 17, 18, 19, 21, 22, 23

Constitution and Statutes U.S. Const. amend. II .................................................................................................................. 1, 7 18 U.S.C.

§ 921(a)(20) ...............................................................................................................................3 § 922(g)(1) .................................................................................................................................3 § 924(a)(2) .................................................................................................................................3

Md. Code Ann., Pub. Safety § 5-133(b)(1) ..............................................................................................................................3 § 5-205(b)(1) ..............................................................................................................................3 § 5-303 .......................................................................................................................................3 § 5-305 .......................................................................................................................................3 § 5-306(a) .......................................................................................................................1, 3, 4, 5 § 5-306(a)(5) ..........................................................................................................................3, 4 § 5-306(a)(6)(i) ..........................................................................................................................3 § 5-306(a)(6)(ii) .........................................................................................................................4

Md. Code Ann., Crim. Law § 4-202 (West) .........................................................................................................................25 § 4-203(a)(1) ..........................................................................................................................2, 3 § 4-203(a)(1)(i) ......................................................................................................................2, 3


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§ 4-203(b)(1) ..............................................................................................................................3 § 4-203(c) .............................................................................................................................1, 21

1836 Mass. Laws 748, ch. 134, § 16 ..............................................................................................13 Act of Feb. 10, 1832, sec. 1, Del. Laws 180 (1832) ......................................................................15 An Act To Punish Certain Offences Therein Named, and for Other Purposes, ch. 23, § 1,

1865 Miss. Laws 165 .........................................................................................................15, 16

Other Authorities 1 The Works of Thomas Jefferson (letter of Aug. 19, 1785)

(H. A. Washington ed., 1884) ..................................................................................................11 1 Walter L. Fleming, Documentary History of Reconstruction (1906) .........................................16 1 William Hawkins, A Treatise of the Pleas of the Crown (1716) ..........................................10, 12 2 Edw. 3, 258, c. 3 (1328) ..............................................................................................................12 3 James Wilson, The Works of the Honourable James Wilson (1804) ....................................12, 13 4 William Blackstone, Commentaries............................................................................9, 10, 12, 14 5 William Blackstone, Commentaries App. n.B, (St. George Tucker ed., 1803) ..........................11 5 William Blackstone, Commentaries App. n.D, (St. George Tucker ed., 1803) ..........................11 Abhay Aneja et al., The Impact of Right to Carry Laws and the NRC Report:

The Latest Lessons for the Empirical Evaluation of Law and Policy (Nat’l Bureau of Econ. Rsch., Working Paper No. 23510, 2012), https://bit.ly/2WfSZhY ....30

Cassandra Crifasi et al., Association Between Firearm Laws and Homicide in Urban Counties, 95 J. Urb. Health 773 (2018) ...................................................................................31

Charles Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822) ......13 Cong. Globe, 39th Cong., 1st Sess. 1182 (1866) (statement of Sen. Pomeroy) ............................16 Daniel W. Webster & Garen J. Wintemute, Effects of Policies Designed to Keep Firearms

from High-Risk Individuals, 36 Ann. Rev. Pub. Health 21 (2015), https://bit.ly/2LvXYsQ ............................................................................................................30

David B. Mustard, Comment, in Evaluating Gun Policy (Jens Ludwig & Philip J. Cook eds., 2003) .............................................................................26

FBI, Active Shooter Incidents in the United States in 2016 and 2017 (Apr. 2018), https://www.fbi.gov/file-repository/active-shooter-incidents-us-2016-2017.pdf/view ...........33

FBI, Crime Data Explorer, https://bit.ly/2KtXmn4.........................................................................9 Firearms, Monticello, https://bit.ly/2LtjazF ..................................................................................11 Gary Kleck, The Effect of Right-to-Carry Laws on Crime Rates:

A Critique of the Donohue et al. (2018) Analysis (Sept. 8, 2018) (unpublished manuscript), https://bit.ly/3mqMrYC ..............................................28, 29, 30, 31


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Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. Crim. L. & Crim’gy 150 (1995) .............................................32

Gary Kleck & Marc Gertz, Carrying Guns for Protection: Results from the National Self-Defense Survey, 35 J. Rsch. in Crime & Delinquency 193 (1998).............................32, 33

Guide to the Interstate Transportation of Firearms, Gun Laws, NRA-ILA, https://bit.ly/3ak1G3n ..............................................................................................................26

Harlow Giles Unger, Lion of Liberty 30 (2010) ............................................................................11 John Adams, First Day’s Speech in Defence of the British Soldiers Accused of

Murdering Attucks, Gray and Others, in the Boston Riot of 1770, in 6 Masterpieces of Eloquence 2569 (Hazeltine et al. eds., 1905) .........................................11

John Donohue et al., Right-to-Carry Laws and Violent Crime: A Comprehensive Assessment Using Panel Data and a State-Level Synthetic Control Analysis, 16 J. Empirical Legal Stud. 198 (2019) .......................................................................28, 29, 30

John R. Lott, Concealed Carry Permit Holders Across the United States: 2018 34 (Aug. 29, 2018) (unpublished manuscript), https://bit.ly/37DwJ8e ..........................26

Legality of the London Military Foot-Association (1780), reprinted in William Blizzard, Desultory Reflections on Police (1785). ..................................................................................10

Mark E. Hamill et al., State Level Firearm Concealed-Carry Legislation & Rates of Homicide & Other Violent Crime, J. Am. C. Surgeons (2019) .................................31

Mark Gius, Using the Synthetic Control Method to Determine the Effects of Concealed Carry Laws on State-Level Murder Rates, 57 Int’l Rev. L. & Econ. 1 (2019) ........................31

Michael Siegel et al., Easiness of Legal Access to Concealed Firearm Permits and Homicide Rates in the United States, 107 Am. J. Pub. Health 1923 (2017), https://bit.ly/3r1r57R ........31

National Research Council, Firearms and Violence: A Critical Review (Charles F. Wellford, John V. Pepper, & Carol V. Petrie eds., 2005) .........................26, 27, 32

Nicholas J. Johnson & David B. Kopel et al., Firearms Law and the Second Amendment (2012) ......................................................................................................................................10

Philip J. Cook et al., Gun Control After Heller, 56 UCLA L. Rev. 1041 (2009) ..........................26 Robert Hahn et al., Firearms Laws and the Reduction of Violence: A Systematic Review,

28 Am. J. Preventative Med. 40 (2005) ...................................................................................27 Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-

Americanist Reconsideration, 80 Geo. L.J. 309 (1991) .....................................................15, 16 Robert Leider, Constitutional Liquidation, Surety Laws, and the Right to Bear Arms

(Nov. 4, 2020) (unpublished manuscript), https://bit.ly/3oVfdlU .....................................13, 14 Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to

“Bear Arms,” 49 Law & Contemp. Probs. 151 (1986) ...........................................................32 William Lambard, Eirenarcha 135 (1588) ....................................................................................12 William M. Darlington, Christopher Gist’s Journals (1893) ........................................................11


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INTRODUCTION

At the core of the Second Amendment lies “the individual right to possess and carry

weapons in case of confrontation.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). When

the people elevated that right into the Nation’s fundamental charter, they did not intend to leave

the freedom to exercise it at the mercy of the very government officials whose hands they sought

to bind. No, “[t]he very enumeration of the right takes out of the hands of government . . . the

power to decide on a case-by-case basis whether the right is really worth insisting upon.” Id. at

634.

The State of Maryland has imposed limits on “the right of the people to . . . bear Arms,”

U.S. Const. amend. II, that flout these basic constitutional principles at every turn by criminalizing

the carrying of handguns by ordinary citizens, making it wholly unlawful for law-abiding citizens

to exercise their fundamental right to bear arms in public for self-defense without first satisfying

the State that they have a “good and substantial reason” to do so. Md. Code Ann., Pub. Safety § 5-

306(a)(6)(ii); Md. Code Ann., Crim. Law § 4-203(c). The only exception to the State’s criminal

laws, a valid permit to wear, carry, or transport the handgun issued under Title 5, Subtitle 3 of the

Public Safety Article, is unavailable to typical law-abiding adults because Maryland has seized the

very power forbidden it by the Second Amendment: the power to decide, on a case-by-case basis,

whether an applicant for a permit to “carry weapons in case of confrontation,” Heller, 554 U.S. at

592. In the estimation of Maryland’s licensing authorities, carry permit applicants’ right to self-

defense does not provide a sufficiently “good and substantial reason” to exercise that right, Md.

Code Ann., Pub. Safety § 5-306(a)(6)(ii)—demanding, instead, documented evidence of concrete

threats or recent assaults, that set the applicant apart from the “average citizen.” Md. State Police

Standard Operating Proc., SOP 29-19-004 (“SOP”) at 6, 2 (Feb. 26, 2020),


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https://mdsp.maryland.gov/Organization/Licensing%20Division%20Documents/S.O.P.%2029-

19-004%20-%20Processing%20of%20Handgun%20Permit%20Applications.pdf (attached hereto

as Exhibit 1); see also Scherr v. Handgun Permit Rev. Bd., 880 A.2d 1137, 1148 (Md. Ct. Spec.

App. 2005). Maryland has thus struck a balance directly contrary to the Constitution’s demand

that the right to self-defense—“the central component” of the Second Amendment, Heller, 554

U.S. at 599—must be “elevate[d] above all other interests.” Id. at 635.

To be sure, as Maryland points out, the Fourth Circuit—in precedent we concede is binding

on this Court at this stage in the litigation—has upheld Maryland’s “good and substantial reason”

limit. Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013). But Woollard is deeply flawed, and it

should be overturned at the first opportunity by a court competent to do so. Woollard does not

meaningfully acknowledge the State’s regulatory scheme as a de facto ban on the carry of firearms,

nor does it properly consider the extensive textual and historical evidence demonstrating that the

right to carry firearms for self-protection outside the home is at the very core of the Second

Amendment. It adopts merely what it deems to be “intermediate” constitutional scrutiny,

effectively relegating the right to bear arms to second-class status. And even if the choice of

intermediate scrutiny were defensible, Woollard’s application of it—essentially deferring to the

State’s judgment without discussing or even identifying the empirical evidence on which that

judgment was supposedly based—is not.

In sum, although this Court is presently bound by Fourth Circuit precedent to uphold it,

Maryland’s regulatory scheme, including its “good and substantial reason” restriction is

unconstitutional.

STATEMENT

I. Maryland’s Regulatory Scheme Bans Carry by Typical, Law-Abiding Adults

In the State of Maryland, an ordinary, law-abiding citizen may not “wear, carry, or


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transport a handgun, whether concealed or open, on or about the person.” Crim. § 4-203(a)(1)(i).

A person who violates this provision commits a misdemeanor offense and is subject to severe

criminal sanctions, including imprisonment for up to three years for the first offense. Id. § 4-

203(c)(1)–(2). These provisions do not apply “to a person to whom a permit to wear, carry, or

transport the handgun has been issued under Title 5, Subtitle 3 of the Public Safety Article.” Id. §

4-203(b)(1)–(2). Under federal law, 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 921(a)(20), any

conviction under these provisions would result in a lifetime federal firearms disability. Knowing

violation of this disability, including by possession affecting interstate commerce of a firearm, is

punishable by up to ten years’ imprisonment under federal law. 18 U.S.C. § 924(a)(2). The same

lifetime disability and similar penalties are imposed under Maryland law. See Pub. Safety §§ 5-

101(g)(3), 5-133(b)(1), 5-205(b)(1).

Thus, because of the Defendants’ active enforcement of the State’s laws and policies, an

ordinary member of the general public who wishes to “wear, carry, or transport a handgun” in

public, “whether concealed or open,” must first obtain a permit to do so (a “Handgun Carry

Permit”) from the Maryland Secretary of State Police, Defendant Jones. Md. Code Ann., Crim.

Law § 4-203(a)(1), (b)(2); see also Pub. Safety § 5-303. Maryland imposes numerous objective

restrictions on the eligibility for a Handgun Carry Permit. For example, an applicant must be an

adult, must not have been convicted of any felony or any misdemeanor involving controlled

substances, and must not be an alcoholic or addicted to any controlled substance. Pub. Safety § 5-

306(a). An applicant must also pass a background check, id. § 5-305, must satisfy the Secretary,

after investigation, that the applicant “has not exhibited a propensity for violence or instability that

may reasonably render the person’s possession of a handgun a danger to the person or to another,”

id. § 5-306(a)(6)(i), and must have completed an extensive firearms safety training course, id. § 5-


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306(a)(5).

In addition to these eligibility requirements, Maryland law also imposes an entirely

subjective restriction on the availability of Handgun Carry Permits: an applicant must demonstrate

that he or she “has good and substantial reason to wear, carry, or transport a handgun, such as a

finding that the permit is necessary as a reasonable precaution against apprehended danger.” Id. §

5-306(a)(6)(ii). Under regulations maintained by Defendant Jones and enforced by both him and

Defendant Frosh, the apprehended fear must be “beyond that of the average citizen that he/she is

being targeted by individuals wishing to cause him/her harm.” SOP at 2. Accordingly, “vague

threat[s]” are not sufficient “good and substantial reasons” to obtain a permit, and it is not

acceptable that “[e]ach person could decide for himself or herself that he or she was in danger.”

See Snowden v. Handgun Permit Review Bd. of Md. Dep’t of Pub. Safety and Corr. Servs., 413

A.2d 295, 298 (Md. Ct. Spec. App. 1980) (emphasis added) (cited at Handgun Wear and Carry

Permit, Md. State Police, https://mdsp.maryland.gov/Organization/Pages/-

CriminalInvestigationBureau/LicensingDivision/Firearms/WearandCarryPermit.aspx?View=%7

Bd916bb38-9fb0-4be4-83fb-647a71f71634%7D&SortField=Doc_x0020_Title&SortDir=Desc

(last visited Dec. 20, 2020)). Instead, an applicant must generally face a concrete risk that sets him

or her apart from “an average person” who “lives in a dangerous society” and wants to carry a

protective firearm for that reason. See Scherr, 880 A.2d at 1148 (cited at Handgun Wear and Carry

Permit).

Further, under Defendants’ regulations, even a person who faces an imminent, atypical

threat must still prove that threat by providing “[c]opies of documented evidence that the

applicant’s life is in imminent danger or is currently being targeted by individuals wishing to do

the applicant harm.” SOP at 6 (emphasis added). In particular, “[t]here must be documented


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evidence of recent threats, robberies, and/or assaults, supported by official police reports or

notarized statements from witnesses.” Application Information, Md. State Police Licensing Portal,

accessed at https://licensingportal.mdsp.maryland.gov/MSPBridgeClient/#/home (attached as

Exhibit A to the Declaration of Tiernan B. Kane (“Kane Decl.”) (attached hereto as Exhibit 2));

accord Instructions for Handgun Permit in the Licensing Portal, Md. State Police Licensing Portal,

accessed at https://licensingportal.mdsp.maryland.gov/MSPBridgeClient-/#/home (attached as

Exhibit B to Kane Decl.); see also Compl. for Declaratory and Injunctive Relief, Doc. No. 1 at ¶

3 (Nov. 13, 2020) (“Complaint”).

Consequently, typical Maryland citizens—who cannot provide “documented evidence of

recent threats,” id., that set them apart from the “average citizen,” SOP at 2, and who amount to

the vast majority of citizens—are subject to an effective ban on carrying handguns outside the

home for self-defense.

II. Defendant’s Refusal to Issue Handgun Carry Permits to Plaintiffs

Defendants concede that “Plaintiffs Call, Mehl and Harrison applied for and were denied

a permit on the basis that they did not have a ‘good and substantial reason’ to wear, carry or

transport a handgun,”1 and that Plaintiffs Firearms Policy Coalition, Inc., Second Amendment

Foundation, Maryland Shall Issue, Inc., and Citizens Committee for the Right to Keep and Bear

Arms “have members who intend and desire to keep and bear arms outside the home.” Defs.’ Mem

in Supp. of Mot. to Dismiss the Compl. at 3, Doc. No. 16-1 (Dec. 7, 2020) (“MTD Mem.”). Each

1 Mr. Call applied to Defendant Jones for a permit to carry a handgun in public before

October 2020 and was denied by Defendant Jones on October 15, 2020, even though he possesses all of the qualifications to obtain a Handgun Carry Permit enumerated in section 5-306(a)(1)–(5) of the Public Safety Article of the Maryland Code. Complaint ¶¶ 20, 23, 22. Likewise, Mr. Mehl applied to Defendant Jones for a permit in or around March 2020, but was denied on or about July 11, 2020, even though he qualified for a permit under section 5-306(a)(1)–(5). Id. at ¶ 25, 28, 27. Finally, Mr. Harrison applied to Defendant Jones for a permit, but was denied on or about October 1, 2020, despite being qualified under section 5-306(a)(1)–(5). Id. at ¶ 30, 33, 32.


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of the organizational plaintiffs has had at least one member denied a Handgun Carry Permit for

alleged lack of a “good and substantial reason.” See Complaint at ¶¶ 1–3.

ARGUMENT

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Lucero v. Early, 873

F.3d 466, 469 (4th Cir. 2017) (quotation marks omitted). The Court must “accept as true all well-

pleaded facts in a complaint and construe them in the light most favorable to the plaintiff.”

Wikimedia Found. v. Nat’l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017).

As Defendants note, the Fourth Circuit held in Woollard that Maryland’s “good and

substantial reason” restriction on the issuance of Handgun Carry Permits is consistent with the

Second Amendment. Because this Court is “bound to follow circuit precedent,” Carcaño v.

McCrory, 203 F. Supp. 3d 615, 637 (M.D.N.C. 2016), Plaintiffs do not dispute that it must follow

the controlling decision in Woollard, with respect to the “good and substantial reason” restriction

at this point in the proceedings. But Woollard’s ruling is deeply flawed, and as we show below, it

should be overruled at the first opportunity by a court with authority to do so.

I. The Conduct Restricted by Maryland’s Regulatory Scheme Lies at the Core of the Second Amendment.

A. Text, Precedent, Purpose, and History All Confirm That the Right to Keep and Bear Arms Extends Outside the Home.

In Heller, the Supreme Court held that the Second Amendment “guarantee[s] the individual

right to possess and carry weapons in case of confrontation.” 554 U.S. at 592. And although that

landmark ruling did not purport to “clarify the entire field” of Second Amendment jurisprudence,

id. at 635, Heller did set forth clear guidance about the methodology for deciding future disputes

over the right to keep and bear arms. Because “[c]onstitutional rights are enshrined with the scope

they were understood to have when the people adopted them,” id. at 634–35, deciding whether a


7

government restriction challenged on Second Amendment grounds can be squared with that

provision involves close “textual analysis” and “historical inquiry.” United States v. Chester,

628 F.3d 673, 675, 680 (4th Cir. 2010). Here, text, precedent, purpose, and history uniformly show

that the carrying of firearms outside the home for self-defense is squarely protected by the Second

Amendment right.

1. The text of the Second Amendment leaves no doubt that it applies outside the home.

The substance of the Second Amendment right reposes in the twin verbs of the operative clause:

“the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II

(emphasis added). Because “[t]o speak of ‘bearing’ arms within one’s home would at all times

have been an awkward usage,” the Constitution’s explicit inclusion of the “right to bear arms thus

implies a right to carry a loaded gun outside the home.” Moore v. Madigan, 702 F.3d 933, 936 (7th

Cir. 2012). Indeed, interpreting the Second Amendment as confined to the home would read the

second of these guarantees—the right to bear arms—out of the Constitution’s text altogether, for

the right to keep arms, standing alone, would be sufficient to protect the right to have arms in the

home.

2. Confining the Second Amendment to the home would also be at war with

precedent. The Supreme Court’s decision in “Heller repeatedly invokes a broader Second

Amendment right than the right to have a gun in one’s home.” Id. at 935–36. For instance, Heller

squarely holds that the Second Amendment “guarantee[s] the individual right to possess and carry

weapons in case of confrontation,” 554 U.S. at 592 (emphasis added), and it defines the key

constitutional phrase “bear arms” as to “ ‘wear, bear, or carry . . . upon the person or in the clothing

or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a

case of conflict with another person,’ ” id. at 584 (alterations in original) (quoting Muscarello v.


8

United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting)). Heller’s indication that “laws

forbidding the carrying of firearms in sensitive places such as schools and government buildings”

are “presumptively lawful” also implicitly recognizes a general right to bear arms in public;

otherwise, there would be no need to identify exceptions. Id. at 626, 627 n.26. Moreover, Heller

extensively cites and significantly relies upon Nunn v. State, a nineteenth-century Georgia case

that “struck down a ban on carrying pistols openly” under the Second Amendment. Id. at 612; see

also Caetano v. Massachusetts, 136 S. Ct. 1027 (2016) (vacating state court ruling that the Second

Amendment does not protect the right to carry a stun gun in public).

While the Fourth Circuit has not squarely addressed whether the Second Amendment

applies outside the home, Woollard “assume[d] that the Heller right exists outside the home.”

712 F.3d at 876. That assumption is consistent with the persuasive authority from other federal

courts. Three circuit courts have directly held that the Second Amendment right to armed self-

defense does not give out at the doorstep. See Gould v. Morgan, 907 F.3d 659, 670 (1st Cir. 2018)

(“we view Heller as implying that the right to carry a firearm for self-defense guaranteed by the

Second Amendment is not limited to the home”); Wrenn v. District of Columbia, 864 F.3d 650,

661 (D.C. Cir. 2017); Moore, 702 F.3d at 935, 942. And no federal court of appeals has held that

the Amendment does not apply outside the home.

3. The very purposes behind the Second Amendment’s codification show that it must

protect the carrying of arms outside the home. As announced by its “prefatory” clause, the

Amendment was designed in part “to prevent elimination of the militia.” Heller, 554 U.S. at 599.

A right to bear arms limited to the home would be ill-suited to “rearing up and qualifying a well-

regulated militia,” id. at 612 (quoting Nunn v. State, 1 Ga. 243, 251 (1846)), for if citizens could

be prohibited from carrying arms in public, they simply could not act as the militia at all.


9

Of course, the militia was not “the only reason Americans valued the ancient right; most

undoubtedly thought it even more important for self-defense and hunting.” Id. at 599. Hunting

obviously cannot be conducted by those bearing arms only within their homes. And the same

reasoning applies with even more force to the “the central component” of the Second Amendment

right: self-defense. Id. There is nothing in Heller’s language to suggest that this core purpose may

only be pursued in the home. Nor is there any such suggestion in the Amendment’s text. And “one

doesn’t have to be a historian to realize that a right to keep and bear arms for personal self-defense

in the eighteenth century could not rationally have been limited to the home.” Moore, 702 F.3d at

936. “The Supreme Court has decided that the [Second Amendment] confers a right to bear arms

for self-defense, which is as important outside the home as inside.” Id. at 942. Indeed, according

to nationwide data from the Federal Bureau of Investigation, in 2019, almost half of all robberies,

for example, occurred on the street or in a parking lot or garage. FBI, Crime Data Explorer,

https://bit.ly/2KtXmn4; see also Moore, 702 F.3d at 937 (“[A] Chicagoan is a good deal more

likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor

of the Park Tower.”) Thus, “[t]o confine the right to be armed to the home is to divorce the Second

Amendment from the right of self-defense described in Heller and McDonald.” Moore, 702 F.3d

at 937.

4. Finally, the historical understanding of the right to keep and bear arms conclusively

confirms that it extends outside the home.

As McDonald v. City of Chicago explains, “[s]elf-defense is a basic right, recognized by

many legal systems from ancient times to the present day.” 561 U.S. 742, 767 (2010). And because

the need for self-defense may arise in public, it has long been recognized that the right to self-

defense may be exercised in public. Thus, “[i]f any person attempts a robbery or murder of another,


10

or attempts to break open a house in the night time, . . . and shall be killed in such attempt, the

slayer shall be acquitted and discharged.” 4 William Blackstone, Commentaries *180 (emphasis

added). “Sergeant William Hawkins’s widely read Treatise of the Pleas of the Crown,” Atwater v.

City of Lago Vista, 532 U.S. 318, 331 (2001), likewise explained that “the killing of a Wrong-doer

. . . may be justified . . . where a Man kills one who assaults him in the Highway to rob or murder

him,” 1 William Hawkins, A Treatise of the Pleas of the Crown 108 (1716).

Because the right to self-defense was understood to extend beyond the home, the right to

armed self-defense naturally was as well. Accordingly, by the late seventeenth century the English

courts recognized that it was the practice and privilege of “gentlemen to ride armed for their

security.” Rex v. Knight, 90 Eng. Rep. 330 (K.B. 1686). A century later, the Recorder of London—

a judge and “the foremost legal advisor to the city,” Parker v. District of Columbia, 478 F.3d 370,

382 n.8 (D.C. Cir. 2007)—opined that “the right of his majesty’s Protestant subjects, to have arms

for their own defence, and to use them for lawful purposes, is most clear and undeniable,” Legality

of the London Military Foot-Association (1780), reprinted in William Blizzard, Desultory

Reflections on Police 59 (1785). These “lawful purposes, for which arms may be used,” were not

limited to the home, for they included “immediate self-defence, . . . suppression of violent and

felonious breaches of the peace, the assistance of the civil magistrate in the execution of the laws,

and the defence of the kingdom against foreign invaders.” Id. at 63.

That understanding was shared on this side of the Atlantic. Indeed, “about half the colonies

had laws requiring arms-carrying in certain circumstances,” such as when traveling. Nicholas J.

Johnson & David B. Kopel et al., Firearms Law and the Second Amendment 106–08 (2012)

(emphasis added). Plainly, if the law imposed on individuals a duty to bear arms “for public-safety

reasons,” Heller, 554 U.S. at 601, it necessarily conferred a corresponding right to do so. And that


11

understanding endured in the next century, both before and after the Revolution. Indeed, as Judge

St. George Tucker observed in 1803, “[i]n many parts of the United States, a man no more thinks,

of going out of his house on any occasion, without his rifle or musket in his hand, than an European

fine gentleman without his sword by his side.” 5 William Blackstone, Commentaries App. n.B, at

19 (St. George Tucker ed., 1803). And Tucker made clear that Congress would exceed its authority

were it to “pass a law prohibiting any person from bearing arms.” 1 id. App. n.D, at 289.

The practices of the Founding generation confirm that the right to carry arms was well-

established. George Washington, for example, carried a firearm on an expedition into the Ohio

Country. William M. Darlington, Christopher Gist’s Journals 85–86 (1893). Thomas Jefferson

advised his nephew to “[l]et your gun . . . be the constant companion of your walks,” 1 The Works

of Thomas Jefferson 398 (letter of Aug. 19, 1785) (H. A. Washington ed., 1884), and Jefferson

himself traveled with pistols for self-protection and designed a holster to allow for their ready

retrieval, see Firearms, Monticello, https://bit.ly/2LtjazF. Even in defending the British soldiers

charged in the Boston Massacre, John Adams conceded that, in this country, “every private person

is authorized to arm himself; and on the strength of this authority I do not deny the inhabitants [of

Boston] had a right to arm themselves at that time for their defence.” John Adams, First Day’s

Speech in Defence of the British Soldiers Accused of Murdering Attucks, Gray and Others, in the

Boston Riot of 1770, in 6 Masterpieces of Eloquence 2569, 2578 (Hazeltine et al. eds., 1905). And

as an attorney, Patrick Henry regularly carried a firearm while walking from his home to the

courthouse. Harlow Giles Unger, Lion of Liberty 30 (2010).

This understanding was also reflected in contemporary judicial decisions. As the panel

decision in Peruta v. County of San Diego concluded after an exhaustive survey of the early-

American case law, although “some courts approved limitations on the manner of carry outside


12

the home, none approved a total destruction of the right to carry in public.” 742 F.3d 1144, 1160

(9th Cir. 2014), vacated, 781 F.3d 1106 (9th Cir. 2015) (en banc); see also, e.g., Nunn, 1 Ga. at

243, 249–51; State v. Reid, 1 Ala. 612, 616–17 (1840); Bliss v. Commonwealth, 12 Ky. (2 Litt.)

90, 91–93 (1822).

To be sure, the right to bear arms is not a right to “carry any weapon whatsoever in any

manner whatsoever and for whatever purpose.” Heller, 554 U.S. at 626. For example, in the pre-

history of the Second Amendment, the medieval Statute of Northampton provided that “no man

great nor small” shall “go nor ride armed by night nor by day, in fairs, markets, nor in the presence

of the justices or other ministers, nor in no part elsewhere.” 2 Edw. 3, 258, c. 3 (1328). But

Northampton—and the analogues adopted on this side of the Atlantic—did not broadly prohibit

public carry in populated places. To the contrary, by the seventeenth century the courts and

commentators had conclusively interpreted the provision as limited to “prohibiting the carrying of

‘dangerous and unusual weapons,’ ” Heller, 554 U.S. at 627—weapons not protected by the right

to keep and bear arms, id. at 623–24, 627—or otherwise “go[ing] armed to terrify the King’s

subjects,” Sir John Knight’s Case, 87 Eng. Rep. 75, 76 (K.B. 1686). And this rule against “riding

or going armed, with dangerous or unusual weapons” and thereby “terrifying the good people of

the land,” 4 William Blackstone, Commentaries *148–49, was not understood as extending to the

ordinary carrying of weapons “usually worne and borne,” William Lambard, Eirenarcha 135

(1588), unless “accompanied with such circumstances as are apt to terrify the people,” 1 Hawkins,

supra, at 136.

Early American courts and commentators shared this understanding of the scope of the

right to bear arms in self-defense. For instance, James Wilson, a leading Framer and Supreme

Court Justice, explained in his widely read Lectures on Law that it was unlawful only to carry


13

“dangerous and unusual weapons, in such a manner, as will naturally diffuse a terrour among the

people.” 3 James Wilson, The Works of the Honourable James Wilson 79 (1804). After all, as

another commentator explained, “in this country the constitution guaranties to all persons the right

to bear arms; then it can only be a crime to exercise this right in such a manner, as to terrify the

people unnecessarily.” Charles Humphreys, A Compendium of the Common Law in Force in

Kentucky 482 (1822); see also State v. Huntly, 25 N.C. 418, 422–23 (1843); Simpson v. State, 13

Tenn. 356, 359–60 (1833).

And early American understanding was manifested in early American practice. A new

historical study of arrest reports, across the United States, throughout the entire nineteenth century,

revealed almost no arrests for Northampton violations. Robert Leider, Constitutional Liquidation,

Surety Laws, and the Right to Bear Arms (Nov. 4, 2020) (unpublished manuscript),

https://bit.ly/3oVfdlU. Such data fits with a ban on “terrify[ing] the people unnecessarily,” but not

at all with a general ban on carriage of arms.

Further still from such a general ban were “surety”-type laws enacted beginning in the

1830s. These laws required any person who bore arms in public to post a deposit or “surety” “for

keeping the peace” upon complaint of “any person having reasonable cause to fear an injury, or

breach of the peace,” unless he himself could show that he had “reasonable cause to fear an assault

or other injury, or violence to his person, or to his family or property.” 1836 Mass. Laws 748, 750,

ch. 134, § 16. To be clear, these laws were triggered only when some person who reasonably felt

threatened lodged a complaint. 1836 Mass. Laws 750. Moreover, even if there was a complaint,

the individual in question could nonetheless continue to carry his firearm, so long as he posted a

surety designed to cover the potential costs of any breach of the peace. Id. These laws were also

accompanied by a safe-harbor provision for anyone carrying a firearm because of “reasonable


14

cause to fear an assault or other injury” to himself, his family, or his property. Taken together,

these surety-style laws simply “did not deny a responsible person carrying rights unless he showed

a special need for self-defense.” Wrenn, 864 F.3d at 661.

Furthermore, the historical evidence makes clear that these types of restrictions were not

viewed as broadly restricting public carry. As Blackstone explained, a law requiring the posting of

a surety to keep the peace was “intended merely for prevention” in circumstances where there was

“a probable suspicion, that some crime is intended or likely to happen; and consequently it is not

meant as any degree of punishment, unless perhaps for a man’s imprudence in giving just ground

of apprehension.” 4 William Blackstone, Commentaries *249 (emphasis added).

Accordingly, when the leading surety-law state, Massachusetts, wanted actually to prohibit and

punish various modes of carriage of arms, it turned to passing a series of criminal statutes. See

Leider, supra, at 13. When one of these statutes was challenged in court, the Massachusetts

Supreme Judicial Court supported the restriction’s constitutionality by turning to examples from

the South and from Indiana. Id. at 13–14. The Court “omit[ted] any mention of the 1835 surety

statute,” which would surely have been cited for a sixty-year history of banning the public

carriage—if in fact there had been such a history. Id. at 14. Instead, the historical evidence reveals

a common understanding that carrying concealed weapons in Massachusetts was lawful through

the nineteenth century. Id. During that time, there were, across all the surety-law states, only three

court cases “involving sureties or bonds for the peaceful carrying of firearms.” Id. at 17. One of

those cases was dropped on appeal, all of them involved the arrest of African Americans in a period

plagued by racial discrimination, and none of them suggests that surety-style laws were broad bans

on public carriage of firearms. See id. at 16–17. Rather, “surety” laws suggest how well respected

the right to carry was: Not only was carrying not prohibited; it was not even restricted—even in


15

name—except in instances of special threats.

And indeed, as this example suggests, the understanding that the Second Amendment

protected a robust right to carry firearms outside the home persisted throughout the nineteenth

century. While the dispositive question on the scope of the Second Amendment is “the public

understanding in 1791,” Reconstruction-era views provide “confirmation of what . . . ha[s] already

been established”—the right to bear arms protects the carrying of firearms outside the home for

self-defense. See Gamble v. United States, 139 S. Ct. 1960, 1975–76 (2019).

At least, that was true for those whose rights were respected. For decades before the Civil

War, the southern States schemed at every turn to prevent their enslaved and free black populations

from enjoying their freedom, including their freedom to bear arms. An 1832 Delaware law, for

example, forbade any “free negroes [or] free mulattoes to have own keep or possess any Gun [or]

Pistol,” unless they first received a permit from “the Justice of the Peace” certifying “that the

circumstances of his case justify his keeping and using a gun.” Act of Feb. 10, 1832, sec. 1, Del.

Laws 180 (1832); see also Robert J. Cottrol & Raymond T. Diamond, The Second Amendment:

Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 336–38 (1991) (citing similar

laws in Texas, Mississippi, Louisiana, South Carolina, Maryland, Virginia, and Georgia). Indeed,

Chief Justice Taney recoiled so strongly from recognizing African Americans as citizens in the

infamous Dred Scott case precisely because he understood that doing so would entitle them “to

keep and carry arms wherever they went.” Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417

(1857).

After the Civil War, these noxious efforts to suppress the rights of former slaves to carry

arms for self-defense continued. Mississippi’s notorious “Black Code,” for example, forbade any

“freedman, free negro or mulatto” to “keep or carry fire-arms of any kind.” An Act To Punish


16

Certain Offences Therein Named, and for Other Purposes, ch. 23, § 1, 1865 Miss. Laws 165.

Parallel restrictions were enacted in Louisiana and Alabama. Cottrol & Diamond, supra, at 344–

45. And in an ordinance strikingly similar in operation to Maryland’s “good and substantial

reason” law, several Louisiana towns provided that no freedman “shall be allowed to carry fire-

arms, or any kind of weapons, within the parish” without the approval of “the nearest and most

convenient chief of patrol.” 1 Walter L. Fleming, Documentary History of Reconstruction 279–80

(1906). As the Supreme Court explained at length in McDonald, the Reconstruction Congress

labored mightily to entomb this legacy of prejudice. See 561 U.S. at 770–77. Congress’s efforts

culminated in the adoption of the Fourteenth Amendment, which ensured the right of every

American, regardless of race, to “bear arms for the defense of himself and family and his

homestead.” Cong. Globe, 39th Cong., 1st Sess. 1182 (1866) (statement of Sen. Pomeroy); see

also McDonald, 561 U.S. at 775–76.

B. Woollard Erred in Concluding That the Right to Carry Firearms Outside the Home is Not at the Core of the Second Amendment.

The right to “carry weapons in case of confrontation,” Heller, 554 U.S. at 592, is not only

within the scope of the Second Amendment; it lies at the very core of that guarantee. Heller makes

clear that the right to individual self-defense is “the central component” of the Second

Amendment. Id. at 599. Given that the Second Amendment’s text, history, and purposes all show

that its protections extend outside the home, the right to carry firearms “for the core lawful purpose

of self-defense” necessarily extends beyond those four walls as well. Id. at 630. “Thus, the

Amendment’s core generally covers carrying in public for self-defense.” Wrenn, 864 F.3d at 659.

Woollard disagreed with this proposition, based on the Fourth Circuit’s earlier conclusion

in United States v. Masciandaro that the Second Amendment right is “more limited” in public than

within the home, and that restrictions on carrying arms outside the home are thus subject to only


17

intermediate scrutiny. 638 F.3d 458, 470–71 (4th Cir. 2011). That reasoning fails for multiple

reasons. To start, because both Masciandaro and Woollard explicitly declined to conduct any

meaningful textual and historical analysis of whether the Second Amendment applies outside the

home, id. at 474 (opinion of Wilkinson, J.), the Fourth Circuit had little basis for concluding that

the right to bear arms outside the home falls outside the core of the Second Amendment. While

the Fourth Circuit’s decision to “assume that the Heller right exists outside the home,” Woollard,

712 F.3d at 876, may have been “meant to be generous to the plaintiffs, by granting a premise in

their favor,” its effect was to sweep under the rug the overwhelming historical and textual support,

discussed above, for the conclusion that the right to bear arms in public lies at the very heart of the

Second Amendment, Wrenn, 864 F.3d at 663.

Instead of grappling with the historical evidence discussed above, Masciandaro merely

asserted that “firearm rights have always been more limited” outside the home, based on a series

of laws, dating from the nineteenth century and later, that targeted the carrying of concealed

weapons. 638 F.3d at 470. These laws, according to the Fourth Circuit, evinced a “longstanding

out-of-the-home/in-the-home distinction.” Id. Not so. While these laws limited the carrying of

concealed firearms—a practice that was considered dishonorable and especially dangerous by the

social mores of the day—they did so against the background of freely allowing the open carrying

of arms, thus “le[aving] ample opportunities for bearing arms.” Wrenn, 864 F.3d at 662.

The fact that these laws left intact the background right to carry firearms in some manner

was absolutely critical to most of the judicial opinions assessing their constitutionality. The

distinction was relied upon by courts that upheld this type of law against constitutional challenge.

See State v. Chandler, 5 La. Ann. 489, 490 (1850) (concealed carry ban “interfered with no man’s

right to carry arms . . . ‘in full open view,’ ” and thus did not interfere with “the right guaranteed


18

by the Constitution of the United States”); Aymette v. State, 21 Tenn. 154, 160–61 (1840); State v.

Reid, 1 Ala. 612, 616–17 (1840). And it was also endorsed by the opinions striking down

limitations on carrying firearms that cut too close to the core. See Nunn, 1 Ga. at 251 (limitation

on “the practice of carrying certain weapons secretly” was “valid, inasmuch as it does not deprive

the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms,”

but “prohibition against bearing arms openly” was “in conflict with the Constitution, and void”);

see also Bliss, 12 Ky. at 91–94 (holding that even an “act to prevent persons from wearing

concealed arms, is unconstitutional and void,” id. at 93).2 These laws thus provide no historical

pedigree for restrictions, like Maryland’s, which prohibit both open and concealed carrying and

thus add up to “a denial of the right altogether.” Aymette, 21 Tenn. at 161.

Masciandaro specifically cited the Georgia Supreme Court’s decision in Nunn, but that

case refutes the Fourth Circuit’s analysis. Masciandaro cites Nunn for the proposition that

a law which is merely intended to promote personal security, and to put down lawless aggression and violence, and to this end prohibits the wearing of certain weapons in such a manner as is calculated to exert an unhappy influence upon the moral feelings of the wearer, by making him less regardful of the personal security of others, does not come in collision with the Constitution.

Masciandaro, 638 F.3d at 470–71 (quoting Nunn, 1 Ga. at 249). What the Fourth Circuit neglects

to mention is that Nunn struck down the state law at issue in the case, reasoning that because it did

not allow citizens to carry firearms either concealed or openly it “amount[ed] to a destruction of

the right.” Nunn, 1 Ga. 249. Indeed, the Supreme Court in Heller expressly noted that Nunn “struck

down a ban on carrying pistols openly,” citing it as an example of how a law that imposes a “severe

2 A few courts from this era upheld concealed carry bans without relying on this distinction,

but they did so “on the basis of an interpretation of the Second Amendment . . . that conflicts with [Heller.]” Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 91 n.14 (2d Cir. 2012). Those outlier decisions are thus “sapped of authority by Heller,” and cannot be cited as reliable guides to the Second Amendment’s scope. Wrenn, 864 F.3d at 658.


19

restriction” on the right to keep and bear arms should be categorically “struck down.” 554 U.S. at

612, 629.

Had the Fourth Circuit in Woollard or Masciandaro fairly engaged in the textual and

historical analysis required by Heller, it would have reached the same conclusion as the two

circuits that have treated seriously the Second Amendment’s text and history. See Wrenn, 864 F.3d

at 661; Moore, 702 F.3d at 937, 942. For as shown above, these sources of authority leave no doubt

that this constitutional guarantee extends outside the home. See supra, Part I.A. And because that

is so, the right to bear arms “for the core lawful purpose of self-defense,” Heller, 554 U.S. at 630,

can be no further from the heartland of the Second Amendment than the right to keep them. See

also Wrenn, 864 F.3d at 663 (“[T]he rights to keep and bear arms are on equal footing [;] the law

must leave responsible, law-abiding citizens some reasonable means of exercising each.”).

II. Under Heller, Defendants’ Requirement of a Special Need for Self-defense to Exercise Second Amendment Rights Is Categorically Unconstitutional.

Given that the core of the Second Amendment extends to armed self-defense outside the

home, Heller makes the next analytical steps clear. Because “[t]he very enumeration of the right

takes out of the hands of government—even the Third Branch of Government—the power to

decide on a case-by-case basis whether the right is really worth insisting upon,” wholesale

infringements on the Amendment’s “core protection” must be held unconstitutional categorically,

not “subjected to a freestanding ‘interest-balancing’ approach.” Heller, 554 U.S. at 634.

Defendant’s prohibition is just such an infringement of core Second Amendment conduct.

Accordingly, it is flatly unconstitutional.

In Heller, the Supreme Court declined the invitation to analyze the ban on possessing

handguns at issue under “an interest-balancing inquiry,” such as that “the Court has applied . . . in

various constitutional contexts, including election-law cases, speech cases, and due process cases,”


20

554 U.S. at 689–90 (Breyer, J., dissenting). Instead, the Court determined, the right to keep and

bear arms was “elevate[d] above all other interests” the moment that the People chose to enshrine

it in the Constitution’s text, id. at 635 (majority opinion). Thus, as the Court reaffirmed in

McDonald, it “expressly rejected the argument that the scope of the Second Amendment right

should be determined by judicial interest balancing.” 561 U.S. at 785 (plurality opinion).

This methodological mandate went wholly unheeded in Woollard, however. The Court

“appl[ied] . . . means-end scrutiny”—an interest-balancing test—even after assuming that “the

Heller right . . . has been infringed.” 712 F.3d at 875 (quoting Chester, 628 F.3d at 680); id. at 876.

That is, Woollard denied the conclusiveness of a determination, by “historical inquiry,” that “the

conduct at issue was understood to be within the scope of the right at the time of ratification.” Id.

at 875 (quoting Chester, 628 F.3d at 680). In thus rejecting Heller’s text-and-history approach in

favor of a two-step, interest-balancing approach, Woollard erred. Applying Heller’s method, then,

it is dispositive that the restrictions enforced by Defendants extinguish the core Second

Amendment rights of typical citizens. The threat facing such citizens is, by definition, the general

threat of “liv[ing] in a dangerous society,” and Maryland has deemed that threat categorically

insufficient to justify a Handgun Carry Permit. See SOP at 6; Scherr, 880 A.2d at 1148. Instead,

Defendant Jones requires, and Defendant Frosh reinforces, that Handgun Carry Permit applicants

provide “documented evidence of recent threats,” Ex. 2 at Ex. A; see also SOP at 6, that sets them

apart from the “average citizen,” SOP at 2.

The Second Amendment does not set up a race between law-abiding citizens and their

assailants to the license bureau. For those whose life or safety is threatened, it is cold comfort to

know that they could have carried a firearm if only they could have documented their

“apprehended danger” in advance. Yet, without a permit, any carrying of a handgun outside the


21

home for self-defense purposes, including situations involving “apprehended danger,” is

criminalized by section 4-203(a) of the Criminal Law Article of the Maryland Code, and thus could

land the citizen in jail for up to three years, no matter how immediate or severe the danger, § 4-

203(c)(1)– (2)(i). Surely under the Second Amendment—which protects the right to bear arms “in

case of confrontation,” Heller, 554 U.S. at 592 (emphasis added)—that scheme turns the right to

bear arms on its head.

Indeed, the State’s demand that a citizen prove to its satisfaction that he has a good enough

reason to carry a handgun is flatly inconsistent with the very nature of the Second Amendment

right. The existence of that right is itself reason enough for its exercise. It is thus no surprise that

courts have rejected this kind of “ask-permission-first” regime across a wide variety of

constitutional rights, reasoning that the government has failed to honor a right if it demands to

know—and assess de novo—the reasons justifying each occasion of its exercise. See, e.g., First

Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 784 (1978) (government cannot condition speech

on “a requirement that the speaker have a sufficiently great interest in the subject to justify

communication”); N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971) (prior restraint

presumptively unconstitutional); Emp. Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S.

872, 887 (1990) (government cannot “question the centrality” or “plausibility” of religious

convictions); see also Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 724 (2014).

In short, as the D.C. Circuit persuasively concluded, a proper-cause-type requirement that

limits the carrying of firearms outside the home to those with a “heightened need” for self-defense

“is necessarily a total ban on most . . . residents’ right to carry a gun in the face of ordinary self-

defense needs.” Wrenn, 864 F.3d at 666. Indeed, such a restriction “destroys the ordinarily situated

citizen’s right to bear arms not as a side effect of applying other, reasonable regulations . . . , but


22

by design: it looks precisely for needs ‘distinguishable’ from those of the community.” Id. Such a

prohibition is unconstitutional per se.

III. Woollard Was Wrong to Uphold Defendants’ “Good and Substantial Reason” Restriction Under Intermediate Scrutiny.

A. Strict Scrutiny Should Apply.

Even if Defendants’ restrictions were not categorically unconstitutional, they should at the

least be subjected to the highest level of constitutional scrutiny. As the Supreme Court has

explained, “strict judicial scrutiny [is] required” whenever a law “impinges upon a fundamental

right explicitly or implicitly protected by the Constitution.” San Antonio Indep. Sch. Dist. v.

Rodriguez, 411 U.S. 1, 17 (1973). And the right to bear arms is not only enumerated in the

constitutional text; it was also counted “among those fundamental rights necessary to our system

of ordered liberty” by “those who drafted and ratified the Bill of Rights.” McDonald, 561 U.S. at

768, 778. Woollard’s application of merely intermediate scrutiny, by contrast, relegates the Second

Amendment to “a second-class right.” Id. at 780 (plurality).

B. Defendants’ “Good and Substantial Reason” Restriction Fails Even Intermediate Scrutiny, Properly Applied.

In this case, though, the standard of heightened scrutiny is immaterial, for the “good and

substantial reason” restriction fails even under intermediate scrutiny.

1. That is so, first, as a matter of law. By design, Defendants’ restrictions are to reduce

firearm violence only by reducing the quantity of firearms in public. That is “not a permissible

strategy”—even if used as a means to the further end of increasing public safety. Grace v. District

of Columbia, 187 F. Supp. 3d 124, 148 (D.D.C. 2016), aff’d sub nom. Wrenn v. District of

Columbia, 864 F.3d 650. That conclusion follows directly from the Supreme Court’s precedents

in the secondary-effects area of free-speech doctrine.

The Supreme Court has held that governmental restrictions on certain types of expressive


23

conduct—most commonly, zoning ordinances that apply specifically to establishments offering

adult entertainment—are subject to merely intermediate scrutiny even though they are content-

based. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47–51 (1986). But this lesser scrutiny

applies only so long as the purpose and effect of the restrictions is to reduce the negative

“secondary effects” of the expression—such as the increased crime that occurs in neighborhoods

with a high concentration of adult theaters—rather than to suppress the expression itself. Id. at 49.

As Justice Kennedy’s controlling opinion in City of Los Angeles v. Alameda Books, Incorporated,

535 U.S. 425 (2002), makes clear, in defending a restriction as narrowly tailored to further an

important or substantial governmental interest, the government may not rely on the proposition

“that it will reduce secondary effects by reducing speech in the same proportion.” Id. at 449. “It is

no trick to reduce secondary effects by reducing speech or its audience; but [the government] may

not attack secondary effects indirectly by attacking speech.” Id. at 450; see also Heller v. District

of Columbia (Heller III), 801 F.3d 264, 280 (D.C. Cir. 2015); Grace, 187 F. Supp. 3d at 148.

But that is precisely what Maryland has done here. Its restrictive licensing policies do not

regulate the manner of bearing arms or impose reasonable training and safety requirements. No,

their purpose and effect is to limit the number of arms borne in public. As Woollard itself describes,

to the extent “the good-and-substantial-reason requirement advances the objectives of protecting

public safety and preventing crime” it is “because it reduces the number of handguns carried in

public.” 712 F.3d at 879. Limits like Defendants’ “good and substantial reason” restriction thus

“destroy[ ] the ordinarily situated citizen’s right to bear arms not as a side effect of applying other,

reasonable regulations . . . but by design.” Wrenn, 864 F.3d at 666. That is “not a permissible

strategy,” Grace, 187 F. Supp. 3d at 148, under any level of heightened scrutiny.


24

2. Even if the purpose and effect of suppressing public carriage of arms were not

intrinsically unconstitutional, independently, that purpose and effect become unconstitutional if

not sufficiently tailored to the government’s asserted goals—in both of two ways. First,

objectively, there must be “a close fit between ends and means,” McCullen v. Coakley, 573 U.S.

464, 486 (2014); accord Bruni v. City of Pittsburgh, 824 F.3d 353, 365 (3d Cir. 2016). That is, the

government “must prove that the law in dispute does not ‘regulate [bearing arms] in such a manner

that substantial portion of the burden on [arms-bearing] does not serve to advance its goals],”

Billups v. City of Charleston 961 F.3d 673, 688 n.9 (4th Cir. 2020) (quoting Ward v. Rock Against

Racism, 491 U.S. 781, 799 (1989)). Second, subjectively, the State must actually have considered

alternatives to the course it adopted. McCullen, 573 U.S. at 2539–40; accord Bruni, 824 F.3d at

367–68. “In other words, the government is obliged to demonstrate that it actually tried or

considered less-[arms-bearing]-restrictive alternatives and that such alternatives were inadequate

to serve the government's interest.” Billups, 961 F.3d at 688. Maryland’s law is not sufficiently

tailored in either sense.

The objective-fit requirement is not met here because of the utter lack of fit between

Defendants’ restrictions and their purported objective of public safety. After all, “the fact that a

person can demonstrate a heightened need for self-defense says nothing about whether he or she

is more or less likely to misuse a gun.” Grace, 187 F. Supp. 3d at 149. “This limitation will neither

make it less likely that those who meet the [good reason] requirement will accidentally shoot

themselves or others, nor make it less likely that they will turn to a life of crime. Put simply, the

solution is unrelated to the problem it intends to solve.” Drake v. Filko, 724 F.3d 426, 454 (3d Cir.

2013) (Hardiman, J., dissenting).


25

Nor is that surprising, as Maryland failed to consider substantial alternatives, thereby

violating the second requirement of narrow tailoring under McCullen. To “justify its choice to

adopt the [‘good and substantial reason’ requirement],” Maryland “would have to show either that

substantially less-restrictive alternatives were tried and failed, or that the alternatives were closely

examined and ruled out for good reason.” See Bruni, 824 F.3d at 370. But when Maryland first

passed its ban on typical citizens carrying firearms in 1972, it stated only that “current law has not

been effective in curbing the more frequent use of handguns in committing crime” and that

“additional regulations on the wearing, carrying, and transporting of handguns are necessary to

preserve the peace and tranquility of the State and to protect the rights and liberties of the public.”

See Md. Code Ann., Crim. Law § 4-202 (West). This was “simply to say that other approaches

have not worked” and thus was “not enough” to overcome “the vital [Second] Amendment

interests at stake.” See McCullen, 573 U.S. at 496. Under the Second Amendment, Maryland

unconstitutionally chose to “forego a range of alternatives—which would burden substantially less

[arms-bearing] than a blanket prohibition on Plaintiffs’ [public carriage of arms]—without a

meaningful record demonstrating that those options would fail to alleviate the problems meant to

be addressed.” See Bruni, 824 F.3d at 371.

3. Furthermore, even setting aside all of the foregoing legal barriers to the satisfaction

of intermediate scrutiny, the heightened need requirement still flunks intermediate scrutiny, and

Woollard was wrong to uphold it. To survive intermediate scrutiny, a restriction must be

“substantially related to the achievement” of the government’s objective. United States v. Virginia,

518 U.S. 515, 533 (1996). “The burden of justification is demanding and it rests entirely on the

State.” Id. As Judge Posner concluded after surveying “the empirical literature on the effects of

allowing the carriage of guns in public,” that data does not provide “more than merely a rational


26

basis for believing that [a ban on public carriage] is justified by an increase in public safety.”

Moore, 702 F.3d at 939, 942.

This is confirmed by experience. Forty-two States do not restrict the carrying of firearms

to a privileged few. See Guide to the Interstate Transportation of Firearms, Gun Laws, NRA-ILA,

https://bit.ly/3ak1G3n (last visited Dec. 21, 2020). Yet “many years of evidence across different

states and time periods overwhelmingly rejects” the claim that “permit holders will use their guns

to commit crimes instead of using their guns for self-defense.” David B. Mustard, Comment, in

Evaluating Gun Policy 325, 330 (Jens Ludwig & Philip J. Cook eds., 2003); see also id. at 330–

31. Permit holders are among the most law-abiding persons in America, with crime rates a fraction

of those of commissioned police officers and far lower still than those of the general population.

See John R. Lott, Concealed Carry Permit Holders Across the United States: 2018 34 (Aug. 29,

2018) (unpublished manuscript), https://bit.ly/37DwJ8e. As social scientists who favor gun control

have acknowledged, there would be “relatively little public safety impact if courts invalidate laws

that prohibit gun carrying outside the home, assuming that some sort of permit system for public

carry is allowed to stand,” since “[t]he available data about permit holders . . . imply that they are

at fairly low risk of misusing guns.” Philip J. Cook et al., Gun Control After Heller, 56 UCLA L.

Rev. 1041, 1082 (2009).

Further, even if laws that more freely grant permits have not been shown to decrease crime,

there is no persuasive evidence for the proposition Defendants must substantiate—that they

increase crime. That is confirmed by the determinations of both respected, public-interest research

organizations that have comprehensively looked at the issue: the National Research Council and

the Centers for Disease Control and Prevention. After exhaustively surveying every reputable

study on the topic, the blue-ribbon NRC committee concluded that “with the current evidence it is


27

not possible to determine that there is a causal link between the passage of right-to-carry laws and

crime rates.” National Research Council, Firearms and Violence: A Critical Review 150 (Charles

F. Wellford, John V. Pepper, & Carol V. Petrie eds., 2005). And the CDC’s task force on the topic,

after completing a similar exhaustive review, likewise concluded that the existing evidence simply

does not establish that a more permissive carry regime “increases rates of unintended and intended

injury in interpersonal confrontations.” Robert Hahn et al., Firearms Laws and the Reduction of

Violence: A Systematic Review, 28 Am. J. Preventative Med. 40, 53–54 (2005).

Woollard’s cursory discussion of whether Maryland’s “good and substantial reason”

requirement actually advances its public-safety justification fell far short of the court’s duty “to

assure that, in formulating its judgments, [Maryland] has drawn reasonable inferences based on

substantial evidence.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 666 (1994). The Fourth

Circuit did little more than parrot Maryland’s assertion that its restriction advances public safety

by, for example, “[d]ecreasing the availability of handguns to criminals via theft,” and “[c]urtailing

the presence of handguns during routine police-citizen encounters.” Woollard, 712 F.3d at 879–

80. The Court did not analyze any empirical studies supporting these propositions, nor did it weigh

(or even mention) the robust social-science evidence cited above that fails to find any causal link

between public safety and restrictions on carrying firearms outside the home. Woollard’s facile

scrutiny of the “good and substantial reason” requirement was “heightened” in name only.

In an attempt to shore up the empirical support for its requirement, Defendants cite a

handful of studies that, they say, “present additional compelling support for the Fourth Circuit’s

holding that there exists a ‘reasonable fit’ between Maryland’s ‘good and substantial reason’

requirement and the governmental objectives of protecting public safety and preventing crime.”

MTD Mem. at 5. None of the cited studies comes close to filling the void left by Woollard.


28

Defendants’ primary piece of evidence is a reference, in a 2016 committee report by the

Johns Hopkins Center for Gun Policy and Research, to a research project of a committee member,

John J. Donohue. The research itself is not provided, either in full or by citation. Apparently,

though, this research developed into what Defendants double-count as “[a]nother comprehensive

study.” This study, Defendants assert, “found that shall-issue laws increase violent crime and

murder.” MTD Mem. at 6 (citing John J. Donohue et al., Right to Carry laws and Violent Crime:

A Comprehensive Assessment Using Panel Data and a State Level Synthetic Controls Analysis,

https://bit.ly/3gQYVrj (Stan. L. & Econ. Olin Working Paper No. 508, 2017) (“Donohue 2017”)).3

In fact, the study states that right-to-carry laws’ “effects on property crime and murder”

were “not statistically significant.” Donohue 2017 at 3. As for the study’s estimation that right-to-

carry laws are “associated with” higher “aggregate violent crime,” that conclusion is fatally

undercut by numerous flaws in the study’s design.

To start, measuring effects on “violent crime,” as defined in Donohue 2017, obscures more

than it reveals. That category is “largely composed of the most unreliably measured type of violent

crime, aggravated assault.” Gary Kleck, The Effect of Right-to-Carry Laws on Crime Rates: A

Critique of the Donohue et al. (2018) Analysis 19 (Sept. 8, 2018) (unpublished manuscript),

https://bit.ly/3mqMrYC. Such inherent unreliability in the data means that aggravated assault, and

thus “violent crime,” may not in fact have increased as Donohue 2017 suggests. On the other hand,

if it did increase, that increase may be driven by aggravated assault alone. Indeed, because “violent

crime” in Donohue 2017 is an opaque, “heterogeneous grab-bag of four radically different kinds

3 This paper was eventually published as John Donohue et al., Right-to-Carry Laws and

Violent Crime: A Comprehensive Assessment Using Panel Data and a State-Level Synthetic Control Analysis, 16 J. Empirical Legal Stud. 198 (2019). For present purposes, the published paper is identical to Donohue 2017.


29

of crime[—]murder, rape, aggravated assault, and robbery”—it is entirely consistent with

Donohue 2017 that right-to-carry laws “reduce three of the four types of violent crime, but increase

one numerous crime type, with a net overall crime-increasing effect on the [violent-crime rate] as

a whole.” Id. at 15. Finding an increase in “violent crime,” then, is hardly informative.

Further, though, the method that Donohue 2017 uses to find a putative increase is not well

deployed. The “synthetic control method” compares crime rates in States that allow law-abiding

citizens to carry firearms, not with real States like Maryland that restrict public carry, but rather

with hypothetical States that are constructed by combining bits and pieces of many different States.

For instance, the authors analyze Texas by comparing its crime rates with “synthetic Texas,” which

is made up of 57.8% of California, 9.7% of Nebraska, and 32.6% of Wisconsin. Id. at 22. Similarly,

“synthetic Pennsylvania” is constructed out of pieces of eight different states. Id. at 24. Because

of the artificiality of such an analysis, even the authors are forced to admit that “there will

undoubtedly be a deviation from the ‘true’ counterfactual and our estimated counterfactual.”

Donohue 2017. at 25–26. And such deviation is more likely still where, as here, “synthetic controls

are poor” in that “they do not track pre-[right-to-carry] trends in [violent crime rates] very well at

all, and thus are not likely to be able to effectively predict post-[right-to-carry] trends in the

absence of [right-to-carry] laws. Kleck at 28. In short, Donohue 2017’s method is faulty.

Yet, even taking the paper’s model at face value, the results it produces fall short of

redeeming Maryland’s bold claims that its “good and substantial reason” restriction leads to an

increase in public safety. In Donohue 2017, “out of 33 total [right-to-carry] states analyzed, 27

states either did not experience worse post-[right-to-carry] trends in [violent crime rates] compared

to their synthetic controls (13 states)” or else experienced deviations “inconsistent with the

interpretation that [these deviations] were due to implementation of [right-to-carry] laws.” Kleck


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at 33. And even the authors accept that the effect on murder rates of loosening restrictions on

public carry was “in no case . . . statistically significant,” which, they admit, “might seem to be at

odds with our theoretical expectations, and in conflict with the estimated increases in overall

violent crime.” Donohue 2017 at 99. Vindication of an alleged need to restrict the exercise of

Second Amendment rights, Donohue 2017 is not.

And the other papers cited by Defendants add little. One is an unpublished 2012 study that

explicitly affirms the NRC’s judgment that the evidence is not sufficient to show any causal link

between laws limiting public carrying of firearms and crime rates; this paper cautions that while

such laws might decrease crime rates, any such conclusion cannot be determined “with the level

of certainty one strives for in academic work.” Abhay Aneja et al., The Impact of Right to Carry

Laws and the NRC Rep